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Lawyers and death

THE BALTIMORE SUN

COCKRELL VS. Burdine was as close to a no-brainer as it ever gets for the U.S. Supreme Court.

Calvin Jerold Burdine, facing the death penalty for a Texas murder, was represented at trial by a court-appointed lawyer who periodically napped (jurors said for up to 10 minutes at a time) through the proceedings. It was quintessential bad lawyering.

But in affirming last week that Mr. Burdine was clearly wronged, the court by extension raises broader issues about lawyers and the death penalty. Among the many troubling moral and legal aspects surrounding capital punishment, bad lawyering stands out as being particularly egregious. Far too many capital inmates have been represented by attorneys who had little experience, committed horrible gaffes during trial or simply shirked their legal responsibility. And most of these folks were awake.

The problems have become widespread enough for two Supreme Court justices to take public notice. Sandra Day O'Connor, who has for years supported capital punishment, gave a speech last year in which she suggested the system may be executing innocent defendants. Why? Because they were represented by lawyers who did not adequately raise doubts about their guilt. Justice O'Connor recommended taking a look at minimum standards for appointed counsel in death penalty cases.

Similarly, Ruth Bader Ginsburg, who has been more skeptical of the death penalty, recently said she has never seen a death row inmate with a good lawyer petition the court. "People who are well represented at trial don't get the death penalty," she said.

This issue hits home in Maryland, where current rules stipulate that a public defender must team with an attorney from the private bar, but where many death row inmates were tried and sentenced before those requirements were in place.

There was Eugene Colvin-el, whose lawyer developed no case in his defense and once said that he thought that was probably OK because Mr. Colvin-el was probably guilty. The governor commuted the death sentence two years ago this month.

Wesley Baker's lawyer agreed not to enter evidence about Mr. Baker's traumatic childhood -- evidence that could have spared him the death penalty -- because Mr. Baker thought the evidence was too embarrassing.

And Anthony Grandison's case may be the worst Maryland example. Doctors have diagnosed him to be of limited mental capacity as a result of brain injuries he sustained as a child when his stepfather beat him with an ax handle. But a judge deemed him competent enough to represent himself when he was accused of capital murder.(Many states do not allow prisoners to defend themselves at capital trials.)

The examples go on and on, in Maryland and around the country. But Even as advocates, lawyers and judges continue to point to the problems, little is being done to force universal change. Maryland's new rules represent some of the country's most progressive, but as Justice O'Connor points out, minimum standards for appointed counsel still do not exist nationwide.

It's an unnecessary recklessness that shames the entire criminal justice system. Death penalty defendants deserve the most vigorous defense available -- not just to protect them, but to preserve the system's integrity. That goal should be one that everyone can support, whether they support the death penalty or abhor it.

An editorial Monday (EDITORIAL APPEARED IN TUESDAY'S PAPER) incorrectly stated that in Maryland capital cases, state law requires a public defender to partner with an attorney in private practice. In fact, the partnering attorney can be another public defender. The Sun regrets the error.
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